23CA1090 Peo v Villalba 02-19-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1090 El Paso County District Court No. 22CR2994 Honorable Laura N. Findorff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kira Lee Villalba,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE HARRIS Dunn and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 19, 2026
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 After her fifteen-month-old child died from fentanyl
intoxication, defendant, Kira Lee Villalba, was convicted of child
abuse resulting in death and unlawful possession of controlled
substances.
¶2 On appeal, Villalba contends that the trial court committed
reversible error by denying her motion to sever her trial from that of
her codefendant, Joenny Astacio, the child’s father, and by allowing
a police officer to answer a jury question to which her counsel
acquiesced. We reject her contentions and therefore affirm.
I. Background
¶3 On the morning of the child’s death, Villalba and Astacio
called 911 to report that the child had stopped breathing.
Paramedics attempted unsuccessfully to resuscitate the child, then
they transported him to a nearby hospital where he was
pronounced dead.
¶4 Toxicology tests later established that the child died of
accidental fentanyl ingestion. The means of ingestion was
unknown, but when police searched the house, they found drug
paraphernalia, including foils, pipes, and other smoking devices,
scattered around the home, as well as multiple types of drugs.
1 ¶5 At the hospital, Villalba told police that she went to sleep with
the child at around 11:00 p.m.; that at 9:00 a.m. the next morning,
while the child was sleeping, she “took a hit off of her vape,” which
she said contained nicotine, and fell back asleep; and that, two
hours later, Astacio woke her up to tell her something was wrong
with the child, and they called 911.
¶6 That evening, the parents submitted to drug testing; when the
results came back positive for high levels of fentanyl, Villalba and
Astacio were charged with reckless child abuse resulting in death
and misdemeanor drug possession.
¶7 After Astacio’s arrest, a detective questioned him about the
events surrounding the child’s death. When the prosecution later
moved to join the parents’ cases for trial, Villalba objected, arguing
that separate trials were required because the admission of
Astacio’s statements at a joint trial would violate her rights under
the Confrontation Clause. The court disagreed and granted the
prosecution’s joinder motion.
¶8 At trial, the prosecution introduced Astacio’s recorded
interview, with all references to Villalba redacted, in which he made
the following statements:
2 • Drug addiction is “pure hell,” “[e]specially, like, seeing
somebody you care about go through it.”
• He smoked fentanyl with a friend all night, “up until the point”
he found the child nonresponsive the next morning. He
ingested the drug by heating the pills on foil and using a straw
or other device to inhale the smoke.
• He “c[ould] at least do this much”: he could “say, okay, you
know, we’re not gonna smoke like this,” meaning not smoke in
front of the child, “because you can’t.”
• He checked on the child throughout the night. He saw foils in
the bedroom, but they were “bagged up and out of the way.”
• Before he left the house to follow the paramedics to the
hospital, he asked the friend to clean up “foils” and “trash.”
• When asked why it took him so long to arrive at the hospital
even though “you guys lived basically across the street,” he
admitted that “there was . . . smoking” on the way to the
hospital.
Additionally, over Villalba’s objection, the court allowed Astacio’s
counsel to ask a detective whether Astacio “had kinda made a rule
that neither him nor [Villalba] was supposed to smoke fentanyl in
3 the same room as [the child],” to which the detective responded,
“Yes, they had had that discussion and agreement.” The court
twice instructed the jury that Astacio’s statements to the detective
could only be used against Astacio and not Villalba.
¶9 The prosecution did not point to either parent as the source of
the fentanyl that killed the child. Instead, its theory was that both
parents were guilty of reckless child abuse because they had
disregarded the risk of “surrounding [the child] [with] drugs and
drug paraphernalia” and thereby placed him in a dangerous
environment that led to his death. See §§ 18-6-401(1)(a), C.R.S.
2025 (“A person commits child abuse if such person . . . permits a
child to be unreasonably placed in a situation that poses a threat of
injury to the child’s life . . . .”); 18-6-401(7)(a)(I) (a person is guilty of
a class 2 felony if the person acts recklessly and the child abuse
results in death). In defense, the parents generally argued that
their addictions prevented an awareness of the risk the drugs and
paraphernalia posed to the child, though each of them also
contended that the other was more responsible for the child’s death.
The jury found both parents guilty of reckless child abuse resulting
in death and Villalba guilty of two counts of drug possession.
4 II. Severance
¶ 10 Villalba contends that the court erred by joining her and
Astacio’s cases for trial because the admission of Astacio’s
statements violated her Sixth Amendment confrontation rights or
otherwise unfairly prejudiced her defense. We disagree.
A. Severance Based on the Confrontation Clause
1. Legal Principles and Standard of Review
¶ 11 Under Crim. P. 8 and Crim. P. 13, the court may order two or
more cases to be joined for trial if the defendants are alleged to have
participated in the same act or series of acts arising from the same
criminal episode. See People v. Black, 2022 COA 127, ¶ 58. Joint
trials are favored under these circumstances because they conserve
resources, reduce the inconvenience or trauma to witnesses, and
encourage consistent verdicts. Samia v. United States, 599 U.S.
635, 654 (2023).
¶ 12 But joint trials can raise constitutional concerns when
evidence is admissible against one defendant, but not the other.
Bruton v. United States, 391 U.S. 123, 135-36 (1968). The
Confrontation Clause guarantees the right of a criminal defendant
“to be confronted with the witnesses against him.” U.S. Const.
5 amend. VI. Thus, the Clause generally prohibits the admission at
trial of out-of-court “testimonial” statements — like a confession to
police. Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
¶ 13 Still, the Confrontation Clause applies only to witnesses
“against the accused.” Id. at 50. And ordinarily, a codefendant
whose out-of-court statements are introduced at a joint trial “is not
considered to be a witness ‘against’ a defendant if the jury is
instructed to consider [the statements] only against [the]
codefendant.” Richardson v. Marsh, 481 U.S. 200, 206 (1987).
¶ 14 But that principle has its limits. When a nontestifying
codefendant’s confession “facially incriminat[es]” the defendant, its
admission at a joint trial violates the defendant’s confrontation
rights, even if the court gives a proper limiting instruction. Samia,
599 U.S. at 647 (quoting Richardson, 481 U.S. at 207); accord
Bruton, 391 U.S. at 136-37. Under those circumstances, “the risk
that the jury will not, or cannot, follow instructions” is
constitutionally intolerable. Bruton, 391 U.S. at 135.
¶ 15 But to fall within Bruton’s “narrow exception” to the
presumption that juries follow their instructions, Richardson, 481
U.S. at 207, the codefendant’s statements must “directly implicate”
6 the defendant in the charged criminal conduct, Samia, 599 U.S. at
648; see also Gray v. Maryland, 523 U.S. 185, 194 (1998)
(explaining that Bruton applies to statements that are “directly
accusatory”). “[I]nferential incrimination” is insufficient.
Richardson, 481 U.S. at 208.
¶ 16 We review de novo whether a court’s ruling deprived the
defendant of her Sixth Amendment confrontation rights. People v.
Ambrose, 2021 COA 62, ¶ 65. If a constitutional violation occurred
and the defendant preserved her claim of error, we will reverse
unless the prosecution proves that the error was harmless beyond a
reasonable doubt. People v. Jones, 2023 COA 104, ¶ 44.
2. Analysis
¶ 17 Villalba contends that admission of the detective’s testimony
that Astacio “told [Villalba] not to smoke fentanyl in bed with [the
child]” violated her confrontation rights. According to Villalba, the
statement “directly incriminated” her by “invit[ing] the inference
[that] she had previously smoked or would smoke fentanyl” around
the child, “such that Astacio told her not to.” For several reasons,
we reject that argument.
7 ¶ 18 First, the detective did not testify that Astacio told Villalba not
to smoke fentanyl in bed with the child. The detective clarified that
Astacio said he and Villalba had a “discussion,” during which they
“agree[d]” not to smoke drugs in the same room as the child.
¶ 19 Second, Astacio’s statement about the parents’ agreement did
not directly inculpate Villalba in the crime of child abuse.1 While
the statement implied that Villalba used drugs, it did not
“referenc[e] [her] smoking fentanyl around [the child],” as Villalba
asserts.
¶ 20 To be facially incriminating, a nontestifying codefendant’s
statement must “obviously refer[] to [the defendant’s] direct
participation in the offense.” United States v. Benson, 957 F.3d
218, 232 (4th Cir. 2020); see also United States v. Mikhel, 889 F.3d
1003, 1045 (9th Cir. 2018) (no Bruton violation where the
1 In a footnote in her reply brief, Villalba says that the admission of
Astacio’s statements requires a new trial on the drug possession charges too. But she does not develop any argument that the statements were directly incriminating with respect to the drug charges. Even if they were, any error in admitting them was surely harmless. Astacio’s statements were cumulative of overwhelming evidence that Villalba possessed fentanyl and cocaine. See People v. McFee, 2016 COA 97, ¶ 48 (Confrontation Clause violation is harmless beyond a reasonable doubt when the evidence is cumulative and the prosecution’s evidence of guilt is overwhelming).
8 challenged statement did not “directly establish[] that [the
defendant] committed or conspired to commit” the charged offense);
United States v. Lage, 183 F.3d 374, 387 (5th Cir. 1999) (no Bruton
violation where the challenged statement placed the defendant at
the scene of the crime but was “utterly silent” as to whether he
participated in it).
¶ 21 Bruton illustrates the point. In that case, a law enforcement
witness testified that the codefendant had “orally confessed to him
that [the codefendant] and [the defendant] committed the armed
robbery.” 391 U.S. at 124. The statements “expressly implicating”
the defendant were so “powerfully incriminating” and “devastating
to the defendant” that the Court concluded a limiting instruction
would be ineffective. Id. at 135-36; see also Gray, 523 U.S. at 188,
192 (codefendant’s confession that he, the defendant, and a third
person had “participated in the beating that resulted in [the
victim’s] death” “directly implicated” the defendant).
¶ 22 The out-of-state cases on which Villalba relies involve directly
incriminating statements, so rather than advancing her position,
the cases merely prove Bruton’s rule. See State v. Tucker, 861 P.2d
24, 35-36 (Haw. Ct. App.) (in case involving child abuse resulting in
9 death, both defendants’ confrontation rights were violated by the
admission of their statements to police that the other had struck
the child in the head), cert. granted and case remanded, 857 P.2d
600 (Haw. 1993); State v. Ennis, 158 P.3d 510, 521 (Or. Ct. App.
2007) (in felony murder case, the defendant’s confrontation rights
were violated by the admission of the codefendant’s statement
establishing the direct participation of “[s]omeone else” in the
predicate offenses); State v. Vasquez, 311 P.3d 1115, 1119-20 (Ariz.
Ct. App. 2013) (in murder case, the defendant’s confrontation rights
were violated where the court failed to give a limiting instruction
and admitted the codefendant-brother’s statement that the murder
was “an accident,” “[t]hey . . . involved [the defendant] in it,” and
that family members had “wanted [them] to turn themselves in”).
¶ 23 The statement at issue here does not establish Villalba’s guilt.
Evidence that Villalba agreed not to smoke around the child was
hardly “devastating” to her defense. To the contrary, as the trial
court found, the evidence suggested that Villalba had not used
fentanyl while in bed with the child. True, some jurors might have
concluded from the statement that Villalba and Astacio were aware
of the risk of exposing the child to drugs. But as Villalba’s
10 argument acknowledges, that conclusion requires a logical
inference. And even then, the statement does not establish guilt.
The jury would have to link evidence of an awareness of a risk to
other evidence to arrive at a finding that Villalba disregarded the
risk and exposed the child to drugs. In other words, even if the
statement established the requisite mens rea, it did not establish
the actus reus, and, therefore, it was not directly incriminating.
See Gorman v. People, 19 P.3d 662, 665 (Colo. 2000) (To subject a
person to criminal liability, “there must be concurrence of the actus
reus, an unlawful act, and the mens rea, a culpable mental state.”);
Richardson, 481 U.S. at 208 (when a confession is “not
incriminating on its face, and bec[omes] so only when linked” with
other evidence, a limiting instruction is sufficient to avoid a
confrontation violation).
¶ 24 Third, the fact that the statement referred indirectly to
Villalba’s fentanyl use also did not facially incriminate her with
respect to the child abuse charge. It was not Villalba’s mere use of
drugs that formed the basis of the prosecution’s case; it was the
child’s proximity to the drugs and paraphernalia.
11 ¶ 25 Villalba also contends that once the court allowed Astacio’s
counsel to elicit the testimony about the parents’ agreement, which
named Villalba directly, the jury “would have had no trouble
identifying who Astacio was referring to” in some of his redacted
interview statements.
¶ 26 As Villalba conceded at oral argument, she never raised the
sufficiency of the redactions in the trial court, so this contention of
error is unpreserved (or, arguably, waived). See Forgette v. People,
2023 CO 4, ¶ 21 (to preserve an issue for appeal, the party must
lodge an objection “specific enough to draw the trial court’s
attention to the asserted error” (citation omitted)).
¶ 27 Regardless, the argument fails on the merits. The challenged
statements do not implicate Villalba in the charged offense, even in
light of the detective’s later reference to her.
¶ 28 For example, Astacio’s admission that he smoked fentanyl the
night before the child died and his explanation of how he typically
smoked fentanyl have nothing to do with Villalba. Nor was she
implicated in Astacio’s statement that he asked the friend to clean
up the house.
12 ¶ 29 The statements that Astacio saw foils in the bedroom (“bagged
up and out of the way”) and that “there was . . . smoking” on the
way to the hospital might be prejudicial, but they did not facially
inculpate her in the crime of child abuse. The former statement is
only inferentially incriminating because it depends on “linkage” to
other evidence admitted at trial. “Where the necessity of such
linkage is involved, it is a less valid generalization that the jury will
not likely obey the instruction to disregard the evidence.”
Richardson, 481 U.S. at 208. The latter statement did not establish
that Villalba committed child abuse, only that she was likely
addicted to fentanyl, a fact that was supported by overwhelming,
uncontested evidence.
¶ 30 And even if the jury would have known that Astacio was
talking about Villalba when he said, “[W]e’re not gonna smoke like
this” (emphasis added) — i.e., in front of the child — “because you
can’t,” the statement is no more damaging than the similar
statement admitted through the detective, which we have concluded
was not facially incriminating.
¶ 31 Accordingly, we conclude that the admission of Astacio’s
interview statements at trial did not deprive Villalba of her
13 confrontation rights and, therefore, did not require severance of the
parents’ trials.
B. Severance Under the Rules of Criminal Procedure or Statute
¶ 32 Even when the Confrontation Clause is not implicated, a
defendant may be entitled to sever her trial from that of her
codefendant. Under Crim. P. 14 and section 16-7-101, C.R.S.
2025, severance is mandatory when the prosecution or a
codefendant seeks to introduce material prejudicial evidence
admissible in a joint trial but not against the moving defendant in a
separate trial. See People v. Maass, 981 P.2d 177, 183 (Colo. App.
1998). The evidence must be so “inherently prejudicial” that the
jury would not be able to limit its use to its proper purpose despite
an instruction. Peltz v. People, 728 P.2d 1271, 1277 (Colo. 1986)
(citation omitted).
¶ 33 If a defendant is not entitled to severance as a matter of right,
the trial court may nonetheless exercise its discretion to sever
codefendants’ trials. In determining whether the court should have
granted a discretionary severance, we consider (1) whether the
number of defendants or the complexity of evidence is such that the
14 jury will confuse the evidence and the law applicable to each
defendant; (2) whether, despite admonitory instructions, evidence
admissible against one defendant will improperly be considered
against another; and (3) whether the defenses are antagonistic.
Black, ¶ 60.
¶ 34 We review a trial court’s decision to deny a severance motion
for an abuse of discretion, Peltz, 728 P.2d at 1275, and will reverse
for misjoinder only if a defendant demonstrates actual prejudice.
People v. Bondsteel, 2015 COA 165, ¶ 33, aff’d, 2019 CO 26,
overruled on other grounds by, Garcia v. People, 2022 CO 6, ¶ 36.
¶ 35 Villalba contends that she was entitled to a severance either as
a matter of right or of discretion.
¶ 36 To support her argument for mandatory severance, Villalba
essentially reasserts her Confrontation Clause arguments,
contending that Astacio’s statements implicated her in criminal or
otherwise reprehensible conduct such that the jury was likely to
use the evidence against her, even with a proper instruction.
¶ 37 Again, the only statements that arguably implicated Villalba
were Astacio’s admission that “there was . . . smoking” on the way
15 to the hospital and that he saw foils in the bedroom. As noted,
these statements were not facially incriminating with respect to the
child abuse charge. And in light of the other evidence of Villalba’s
addiction, we cannot say that these statements were otherwise so
prejudicial that the jury would have used them for an improper
purpose. See People v. Pappadiakis, 705 P.2d 983, 986 (Colo. App.
1985) (mandatory severance was not necessary where the
challenged evidence did not “implicate[] or refer[] to [the] defendant,
and the court . . . instructed the jury that the evidence was not to
be considered against the defendant”), aff’d sub nom., Peltz, 728
P.2d at 1273; People v. Carillo, 946 P.2d 544, 551 (Colo. App. 1997)
(mandatory severance not necessary where challenged testimony
“did not refer to the defendant or mention his name”), aff’d on other
grounds, 974 P.2d 478 (Colo. 1999).
¶ 38 In the alternative, Villalba argues that the court erred by
declining to grant a discretionary severance. We disagree for a few
reasons.
¶ 39 First, contrary to Villalba’s argument, the case was not
“complex.” For one thing, there were only two defendants, and the
evidence was not particularly complicated. See People v. Johnson,
16 30 P.3d 718, 726 (Colo. 2000) (upholding denial of severance in
similar circumstances). And while some evidence was admissible
only against one of the defendants, most of the evidence supporting
the prosecution’s theory of the case — that both Villalba and
Astacio had recklessly surrounded their son with drugs and drug
paraphernalia — was admissible against both defendants. Cf.
People v. Adams, 678 P.2d 572, 574 (Colo. App. 1984) (“Mutual
participation of defendants in an offense is considered a logical
basis for refusing to sever.”).
¶ 40 Second, as we have concluded, any prejudice from evidence
admissible against one of the defendants but not the other was
mitigated by the court’s limiting instructions, and nothing in the
record suggests that we should abandon the presumption that the
jury followed those instructions. See Peltz, 728 P.2d at 1277.
¶ 41 Third, we disagree with Villalba that her defense was
antagonistic to Astacio’s. Antagonistic defenses are “mutually
exclusive” or “irreconcilable,” meaning “the acceptance of one
defense would tend to preclude the acquittal of the other
defendant.” People v. Gutierrez, 2021 COA 110, ¶ 11 (citation
omitted). And while it is true that both Villalba and Astacio argued
17 that the other was more responsible for the child’s death, the jury
could feasibly have acquitted both defendants of reckless child
abuse if it had accepted the argument that their addiction
precluded them from disregarding a known risk to the child. Thus,
the defenses did not rise to the level of antagonism necessary to
require severance. Id.
¶ 42 In sum, we conclude that the court did not abuse its
discretion by denying the motion to sever.
III. Detective’s Testimony Concerning Vape Pens
¶ 43 Villalba also contends that the trial court reversibly erred by
admitting speculative testimony that a vape pen could be used to
smoke fentanyl.
¶ 44 During cross-examination of the lead detective, Astacio’s
counsel asked if a person could “smoke drugs, illegal narcotics,”
including “schedule 2 controlled substances,” “as well as . . .
nicotine” with a vape pen. Villalba’s counsel did not object. The
detective responded that she “assume[d] . . . [that] if you are able to
fill your own vape pen, that you can put whatever you’d like in it.”
¶ 45 The jury submitted multiple questions for the detective.
Question 15 had four subparts. And Question 16(b) asked, “In your
18 time serving as law enforcement, have you ever come across a vape
pen modified for fentanyl use or have [you] heard of this type of
modification being possible?”
¶ 46 During a bench conference, the parties discussed the
submitted questions, after which the court asked both defendants’
lawyers, “So what are we objecting to?” In response, Astacio’s
counsel objected to Question 15, subpart two, concerning whether
drug residue on a mattress could be “breath[ed] into the body.”
Villalba’s counsel then objected to Question 15, subpart one, “on
the same grounds as No. 2.”
¶ 47 When the court agreed to “sustain the objection to 1 and 2 on
Question No. 15,” Villalba’s counsel responded, “Yeah, okay” and
“I’m fine with that.” He did not object to any other question,
including Question 16(b).
¶ 48 In response to Question 16(b), the detective testified,
I’ve heard that fentanyl can be in anything at this point. The vape pens that I have seen have been . . . changed to not look like a vape pen. So I assume that vape pens can come in all sorts of shapes, sizes, and anything could be in them.
Villalba’s counsel did not object to this testimony.
19 ¶ 49 Villalba now argues that the court erred by allowing the
detective to give “speculative” expert testimony in the guise of lay
opinion testimony.
¶ 50 We conclude that Villalba waived any claim of error concerning
Question 16(b). Waiver is “the intentional relinquishment of a
known right or privilege.” People v. Rediger, 2018 CO 32, ¶ 39
(citation omitted). A waiver may be explicit, as when a defendant
“expressly abandons an existing right or privilege,” or it may be
implied, as when a defendant “engages in conduct that manifests
an intent to relinquish a right or privilege or acts inconsistently
with its assertion.” Forgette, ¶ 28. A waived claim of error presents
nothing for an appellate court to review. People v. Kessler, 2018
COA 60, ¶ 38.
¶ 51 Although a mere failure to object does not in all cases
constitute a waiver, Rediger, ¶ 44, agreeing to a proposed course of
action with full knowledge of the surrounding facts and
circumstances does, Forgette, ¶ 34 (The defendant “intentionally
relinquished his known right to object to [a] sleeping juror and
therefore waived any such objection for appellate review” because
20 his “counsel was fully aware of the sleeping juror but did not object
or ask the court to take any action to address the issue.”).
¶ 52 Villalba’s counsel reviewed each juror question and had an
opportunity to object to any of the questions, but he objected only
to parts of Question 15. That he did not object to Question 16(b) is
not surprising, as he had not objected to an earlier question about
the possible use of vape pens. By failing to object, he implicitly
agreed that the court could ask Question 16(b). Therefore, this
claim of error is waived. See People v. Tee, 2018 COA 84, ¶¶ 19-26
(concluding that by acquiescing in the court’s remedial actions, the
defendant waived any claim of error concerning juror pre-
deliberations); Kessler, ¶ 36 (defense counsel’s express agreement
that Breathalyzer results were admissible constituted a waiver of
right to argue the opposite on appeal).
¶ 53 And because the detective’s unreviewable response to the juror
question was cumulative of her earlier testimony about vape pens,
any error in admitting the response was not plain. Cf. People v.
Douglas, 2015 COA 155, ¶ 41 (no plain error where improperly
admitted testimony is cumulative of properly admitted evidence).
21 IV. Cumulative Error
¶ 54 We reject Villalba’s argument that she is entitled to a new trial
based on cumulative error. “For reversal to occur based on
cumulative error, a reviewing court must identify multiple errors
that collectively prejudice[d] the [defendant’s] substantial
rights . . . .” Howard-Walker v. People, 2019 CO 69, ¶ 25. Because
we have found no errors, the cumulative error doctrine does not
apply. See People v. Krueger, 2012 COA 80, ¶ 78.
V. Disposition
¶ 55 The judgment of conviction is affirmed.
JUDGE DUNN and JUDGE MOULTRIE concur.